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[2014] ZALCPE 42
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Volkswagen Of South Africa (Pty) Ltd v Commission For Conciliation Mediation And Arbitration and Others (P196/12) [2014] ZALCPE 42 (3 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
PORT
ELIZABETH.
JUDGMENT
Not Reportable
Case no: P196/12
In
the matter between:
VOLKSWAGEN
OF SOUTH AFRICA (PTY) LTD
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
BULELANI BUSAKWE,
N
.O
Second Respondent
MARIOS
HAYWARD
Third Respondent
Heard: 9 May
2013
Delivered: 3
June 2014
Summary: When
the commissioner’s omission to afford the parties an
opportunity to be heard on an issue he or she intends
considering in
reaching his/her award leads the award to be unreasonable, the award
may be reviewed and set aside.
Review in terms of
section 145 of the LRA –Dismissal for misconduct
JUDGMENT
LALLIE
J
Introduction
[1]
This is an application to review and set aside the arbitration award
of the second
respondent (‘the commissioner”) in which he
found the third respondent’s dismissal substantively unfair and
ordered
his reinstatement.
Factual
background
[2]
In 2010, the applicant was informed of corruption in its
manufacturing planning department.
Investigations established that
the corruption had been going on for years. The third respondent who
was employed by the applicant
as an automation maintenance specialist
in its body shop was fingered as one of the culprits. He was charged
with accepting payment
from a supplier, PK Welding and Robotics
(“PK”), in return for the potential or actual
non-reporting of maintenance
breakdowns of PK’s equipment to
applicant. He was accused of having accepted the payment in
contravention of the applicant’s
stipulation guideline GHR 026
and for abusing his position for self-enrichment and/or a third party
to further his own or the third
party’s interests. He was
subjected to a disciplinary enquiry and dismissed for bribery.
The
award
[3]
Giving reasons for his decision, the commissioner found that no
direct evidence was
led by the applicant as to the exact
transactions/deals / tenders or projects which the applicant
influenced in favour of PK. He
found that no specific recommendations
on equipment to be used were made by the applicant or his senior.
Only Mr Terblanche (Terblanche)
who was an employee of PK perfoming
his duties at the applicant led evidence about the applicant’s
influence. The commissioner
found his evidence of no assistance as
all he could tell the arbitration was that he was informed by Mr
Klein (Klein) that the
reason PK’s opposition equipment failed
when tested at the applicant was with the assistance of the third
respondent. He
had no knowledge of how he assisted. Klein had
testified at the disciplinary enquiry but died before the arbitration
sat. The commissioner
considered evidence he tendered at the
disciplinary enquiry and concluded that he made no mention of the
third respondent assisting
the equipment of PK’s opposition
fail. He therefore concluded that no evidence was tendered by the
applicant to prove that
the third respondent used his influence in
favour of PK.
[4]
The commissioner rejected for lack of evidence the applicant’s
evidence that
the third respondent received a R15 000.00 bribe from
PK which Klein instructed that it be deposited in the bank account of
the
third respondent’s daughter. He treated Tereblanche’s
evidence on the charge that Klein gave the third respondent a
R20
000.00 bribe with caution as he was under criminal investigation. He
also found him an incredible witness whose evidence had
changed and
rejected the applicant’s version. He further criticised the
applicant’s version for being inconsistent
and concluded that
the third respondent’s dismissal was substantively and
procedurally unfair and ordered his reinstatement.
Grounds
for review
[5]
The applicant sought to rely on a number of grounds. They are mainly
that the commissioner’s
failure to determine the central issue,
the finding that Terblanche’s evidence changed, the finding
that a
quid pro quo
for the bribe had not been established and
the finding that it was improbable that a bribe of R20 000.00 had
been paid.
The
test for review
[6]
Applying the test for review as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
,
the Court in
Herholdt
v Nedbank Ltd
[2]
held as follows with regard to errors made by commissioners when
conducting arbitrations:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145 (2) (a) of
the LRA. For a defect in the conduct of the proceedings to
amount to
a gross irregularity as contemplated by section 145 (2) (a)(ii), the
arbitrator must have misconceived the nature of
the inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator
could not reach on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance
to be attached to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence
if their effect is to render the
outcome unreasonable’.
[7]
In Gold Fields Mining SA (Pty) Ltd (
Kloof
Gold Mine
)
v CCMA
[3]
reasonableness as
envisaged in
Sidumo
(supra)
was interpreted as follows:
‘
...This implies
that an application for review sought on the grounds of misconduct,
gross irregularity in the conduct of the arbitration
proceedings,
and/or excess of powers will not lead automatically to a setting
aside of the award if any of the above grounds are
found to be
present. In other words, in a case such as the present, where a gross
irregularity in the proceedings is alleged, the
enquiry is not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether the result
was unreasonable, or
put another way, whether the decision that the arbitrator arrived at
is one that falls in a band of decisions
to which a reasonable
decision-maker could come on the available material’.
[8]
The gist of the third respondent’s argument was that the award
is reasonable.
He also relied on authority consistent with the
current legal position that there is only one law of review. He
further relied
on section 138 (1) of the LRA which requires
commissioners to conduct arbitrations in a manner which ensures that
disputes are
determined fairly and quickly and deal with their
substantial merits with the minimum of legal formalities.
[9]
It is common cause that in determining the dispute the commissioner
had to deal with
a number of difficulties. They included the death of
Klein who was said to have played a pivotal role in the misconduct
which led
to the third respondent’s dismissal. The parties were
not legally represented and were therefore not in a position to
assist
the commissioner effectively in ensuring that all the
necessary evidence was presented at the arbitration either as
evidence in
chief or during cross examination.
[10]
The applicant’s approach that the award stands to be reviewed
owing to its patent and latent
gross irregularities is incorrect. See
Herholdt and Gold Fields (supra
). The process related
irregularity the applicant sought to rely on was criticized by the
Court in
Gold Fields (supra)
on the basis that it raises the
standard of review. It should not be considered in isolation
but should form part of the
assessment of the evidence which served
before the commissioner in its totality, in the process of
determining whether the commissioner
reached a reasonable decision.
When a decision has been made that the commissioner has committed an
irregularity a further enquiry
needs to be conducted to determine
whether the irregularity led the commissioner to reach an
unreasonable decision. The applicant’s
approach on its own does
not render the application defective or its arguments irrelevant. The
correct approach in determining
whether reviewing an award is
permissible, is to consider the totality of the evidence, whether the
arbitrator has considered the
main issue, evaluated the facts before
him and reached a reasonable conclusion. See
Gold Fields (supra).
A consideration of the totality of the evidence which served before
the commissioner reflects that he considered the main dispute
before
him. The main dispute was the fairness of the third respondent’s
dismissal for accepting bribes from PK. The commissioner
made a
considerable effort in considering the fairness of the dismissal. In
evaluating the facts before him, the commissioner was
required to
have been mindful of the relevant legislation and legal principles,
consistently with his duty in section 138 (1) of
LRA to determine a
dispute fairly and dealing with the substantial merits of the
dispute.
[11]
In evaluating the facts, the commissioner made an omission which had
an impact on his decision.
In reaching his decision that the third
respondent’s dismissal was substantively unfair, the
commissioner considered evidence
led by Terblanche and Klein at the
disciplinary enquiry with regard to the payment of the R20 000.00 to
the third respondent. He
found that they did not corroborate each
other as there was a difference of about four to five years in their
version of the year
in which the bribe was paid. He further
found that the evidence tendered by Terblanche at the disciplinary
enquiry was materially
different from the evidence he tendered at the
arbitration and rejected the applicant’s version in that regard
based on the
inconsistencies.
[12]
The issue of inconsistency in the applicant’s evidence was not
raised at the arbitration.
The applicant was denied the opportunity
of dealing with it. There was a duty on the commissioner to bring the
issue to the applicant
and the third respondent’s attention for
them to deal with it. An omission to bring to the parties’
attension an issue
which a commissioner intended basing his or her
decision on is a manifestation of the commissioner’s failure to
evaluate
the facts presented by the parties. By not bringing the
inconsistency to the attention of the applicant and the third
respondent,
the commissioner denied the parties of the opportunity of
dealing with an issue the commissioner intended to rely on in making
his decision and himself, a proper and complete basis of his
decision. He commented that the applicant’s version left one
with more questions than answers. The commissioner’s omission
to ask some of those questions but base his award on incomplete
facts
constituted a gross irregularity.
The
following dictum in Yao Ying Metal Industry (Pty) Ltd v Pooe NO and
Others
[4]
is relevant as part of
the test to determine the reasonableness of an award:
‘……
An
award may also not be founded on matters that occur to the arbitrator
but that the parties have had no opportunity to address.
That
is simply an application of the principles of natural justice, and in
particular the right to be heard, that are now formalised
in the
Promotion of Administrative Justice Act 3 of 2000 (“PAJA”)’.
[13]
The irregularity led the commissioner to reach an unreasonable
decision. Had the commissioner
afforded the applicant and the third
respondent an opportunity to deal with the inconsistencies he would
have had the relevant
facts on which to base a reasonable decision.
The commissioner denied the applicant and the third respondent a full
opportunity
to have their say in respect of the dispute. The
review application must succeed.
[14]
The appropriate relief is to afford the applicant and the third
respondent an opportunity to
have their dispute ventilated properly
at the first respondent. Granting a costs order will not be
appropriate in the circumstances.
[15]
In the premises, the following order is made:
15.1
The arbitration award issued by the second respondent under case
number ECPE 2917-11 is reviewed and set
aside.
15.2
The matter is remitted to the first respondent to be arbitrated
de
novo
by a commissioner other than the second respondent.
Lallie
J
Judge
of the Labour Court of South Africa.
APPEARANCES
For the Applicant:
Advocate Myburgh SC
Instructed by:
Chris Baker and
Associates
For the Third
Respondent:
Advocate Fourie
Instructed by:
Unwin Attorneys
[1]
2008
(2) SA (CC)
[2]
[2013]
11 BLLR 1074
(SCA) at para 25
[3]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 14.
[4]
[2007]
7 BLLR 583
(SCA) at para 6